Hyberg v. Enslow

          ORDER

          RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the February 28, 2019, Report and Recommendation of Magistrate Judge N. Reid Neureiter (ECF No. 41) to grant Defendants' Motion to Dismiss (ECF No. 16) and to deny Plaintiff's request, embedded in his response to the motion to dismiss, to amend the complaint if necessary. Plaintiff has filed objections to the recommendation (ECF No. 45) and a supplement to his complaint (ECF No. 40), which the Court construes as a motion to amend the complaint. Defendants have filed a motion to strike the supplement. (ECF No. 44.) The recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). As explained below, the Court overrules Plaintiff's objections, accepts and adopts the recommendation, grants Defendants' motion to dismiss, and denies Plaintiff's motion to amend the complaint.

         I. LEGAL STANDARDS

         This Court reviews de novo any part of the magistrate judge's recommendation that is properly objected to. Fed.R.Civ.P. 72(b)(3). An objection is proper only if it is sufficiently specific “to focus the district court's attention on the factual and legal issues that are truly in dispute.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). “In the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate.” Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).

         In evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). However, conclusory allegations are insufficient. Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). The complaint must allege a “plausible” right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007); see also Id. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). To determine whether a claim is plausible, a court considers “the elements of the particular cause of action, keeping in mind that the Rule 12(b)(6) standard doesn't require a plaintiff to set forth a prima facie case for each element.” George v. Urban Settlement Servs., 833 F.3d 1242, 1247 (10th Cir. 2016) (quotation omitted).

         A court should allow a party to amend its complaint “when justice so requires.” Fed.R.Civ.P. 15(a)(2). However, a court may deny leave to amend where amendment would be futile. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Id. (quotation omitted).

         Finally, the Court is mindful that Plaintiff proceeds pro se; therefore, the Court reviews his pleadings liberally and holds them to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007).

         II. BACKGROUND

         These background facts are taken from Plaintiff's complaint and separately filed supplement and, for purposes of this order, are stated in the light most favorable to him. Plaintiff is an inmate at the Sterling Correctional Facility who, at the times relevant to this case, worked at the Colorado Correctional Industries Seating Factory. As an inmate and a factory employee, Plaintiff was subjected to occasional strip searches. Plaintiff finds strip searches particularly embarrassing and invasive because he has a condition known as gynecomastia, which causes him to have “breasts [that] are deformed and appear feminine.” (ECF No. 1 at 6, ¶ 13.) According to the complaint, undergoing seventeen strip searches in two years put Plaintiff “at risk of being targeted by other inmates after they saw his naked body and the appearance of female breasts.” (Id. at ¶¶ 15, 17.)

         On January 24, 2017, Defendant Rittenhouse instructed Plaintiff to “strip out” after completing his shift at the seating factory. (Id. at 7, ¶ 19.) At that time, the booths in the common area used for strip outs “provided no real privacy due to the height of the walls [and] the depth of the walls[, ] and no screens or privacy barriers were provided.” (Id. at ¶ 24.) Plaintiff entered a booth, removed his clothing, and, at Defendant Enslow's direction, performed a routine series of a movements that included separating his penis from his scrotum, lifting his scrotum, bending over, and spreading his buttocks. (Id. at 7-8, ¶¶ 26, 28.) Plaintiff then “was forced to get dressed in front of other inmates” before leaving the strip out area. (Id. at 8, ¶ 31.) One inmate was less than a foot away, another was four and a half feet away, and a third was washing his hands at a nearby sink, in clear view of Plaintiff. (Id. at ¶ 32.) The incident prompted Plaintiff to file a grievance on February 13, 2017, because he believed applicable administrative regulations were not being followed. A short while later, the strip out booths were rebuilt.

         On April 17, 2017, a curtain was installed on one of the four new booths, and Plaintiff was again instructed to strip out after his shift. Defendant Quinn instructed Plaintiff to use the booth with a curtain, stating “You get the cubicle with the curtain[.] Just for you.” (Id. at 11, ¶ 56.) Defendant Quinn directed Plaintiff to perform the same series of movements. (Id. at ¶¶ 58-61.) Immediately after giving the final instruction, Defendant Quinn stepped back to allow another inmate to walk past between him and Plaintiff, who was still naked. (Id. at 12, ¶ 62.) In reaction to seeing Plaintiff's naked body, the inmate “raised his hands [to block his view of Plaintiff] and said ‘WHOA-WHOA-WHOA' as he was leaving the strip out area.” (Id. at ¶ 65.)

         Employees of the seating factory received regular evaluations based on their attitude and performance on which their continued employment depended. (ECF No. 40 at 2-3, ¶¶ 9-11.) After Plaintiff began formally complaining about the strip searches, he stopped receiving his monthly evaluations. (Id. at 3, ¶ 12.) Nevertheless, he continued working at the seating factory. Then in January 2019, he received his old evaluations and saw that he had received lower scores after complaining about the strip searches than he had in the previous six years. (Id. at ¶ 13.) Plaintiff alleges that Defendant Enslow, his floor boss, was responsible for filling out the evaluations. (Id. at ¶¶ 16, 17.) He also alleges that Defendant Quinn lowered his scores when he printed them due to information he received from Defendant Enslow. (Id. at 5, ¶¶ 35, 43.)

         III. ANALYSIS

         Plaintiff's complaint contains five claims. The first four are brought under 42 U.S.C. § 1983 for alleged violations of his Fourth Amendment rights by Defendants Enslow, Quinn, Rittenhouse, and Cunningham, respectively. The fifth claim is a § 1983 claim for an alleged violation of his First Amendment rights by Defendant Quinn. In his subsequently filed supplement, Plaintiff ...